Judge Learned Hand, the most eminent
American jurist never to make it to the Supreme Court, once remarked, "I
often wonder whether we do not rest our hopes too much upon constitutions, upon
laws and upon courts. These are false hopes; believe me, these are false hopes.
Liberty lies in
the hearts of men and women; when it dies there, no constitution, no law, no court
can save it.”

Though Americans like to pride
themselves on their devotion to freedom, Hand's comment is all too timely. When
confronted by the demand for political conformity, the national attachment to
civil liberties tends to wither away. A crisis breaks out, suppression occurs
-- and, then, months, years, or decades later, an apology follows.

This narrative repeats itself over
and over throughout our nation's history. For political repression, it turns
out, is as American as apple pie.

Think of the Alien and Sedition
Acts, the murderous attacks on abolitionists before the Civil War, the
suspension of constitutional protections during that war, the crackdown on
foreigners and radicals before and during World War I, the internment of
Japanese-Americans during World War II, and, of course, the McC era of the late
1940s and 1950s -- a period that we now recognize as the most widespread and
long-lasting episode of political repression in American history.

Whether the contemporary assault on human
rights and political freedom will rival that unsavory record remains to be
seen. But as we try to make sense of Guantanamo,
Abu Ghraib, the Patriot Act, and the Bush Administration's increasingly
arbitrary approach to internal security, it may be useful to draw some lessons
from those earlier experiences.

In my presentation today, I want to
draw attention to those aspects of previous crackdowns that seem especially
salient at the moment. In particular, I want to look at the way in which the
invocation of a national emergency bolstered political repression. I also want
to explore some of the specific mechanisms that characterized that repression
and examine the ways in which different sectors of society -- like Congress,
the courts, and private employers -- collaborated with and, thus, contributed
to the erosion of political freedom.

Though I will focus mainly on the
anticommunist political repression we now mistakenly call McCarthyism, it is
important to realize that the 1950s red scare was not unique. The same kinds of
injustices recur throughout American history.

Let's begin by looking at the targets of those injustices.

No doubt every society demonizes its
enemies. The peculiarly American variant of the process periodically embraces
the notion that some kind of alien external force has entered the body politic
and threatens to destroy it from within.

Such scenarios emerge with
particular force during moments of stress when patriots appeal for unity and
fret that the very openness of American society would allow its enemies to use
its own freedom against it.

Though the identity of those enemies
changes over time, most are foreigners and other outsiders.

At
first, Indians or African slaves were believed to imperil the emerging nation.
In the nineteenth century, Catholics, immigrants, and anarchists (separately
and in combination) became the designated danger. Japanese-Americans and
Germans were targets during the two World Wars.

And, by the mid-twentieth century,
Communists, a political minority with a foreign connection, supplanted the
earlier racial, religious, and ethnic subgroups.

Now, despite the Bush
administration's disclaimers, it’s foreigners again: Muslims and people from
the Middle East and South Asia.

What turns xenophobia into repression, however, is the existence of a
crisis -- some kind of hot or cold war in particular. During such
conflicts, governments typically respond by restricting civil liberties.

Sometimes they do so in order to
allay their citizens' fears and give the impression of being on top of the
situation, as the Roosevelt administration did by interning Japanese-Americans
a few months after Pearl Harbor and as, I
believe, the Bush administration may have done by rounding up immigrants in the
aftermath of 9/11.

In other cases, the authorities take
advantage of the opportunity provided by the emergency to pursue a preexisting
agenda and increase their own power, as the Federalists did in the late 1790s
by passing the Alien and Sedition Acts to muzzle their political opponents in
preparation for a forthcoming presidential election, and as the FBI's J. Edgar
Hoover sought to do by expanding the federal government's internal security
apparatus after World War II.

Usually, however, the repression arises from a combination of
causes, ranging from cynical opportunism to a genuine desire for national
security.

Yet, despite the popularity of (or
at least the lack of strong opposition to) such repression, it is not populist
in origin, but comes from above, from people in power. In almost every case,
serious attacks on individual rights start in Washington, D.C.
at the heart of the federal government – and then spread to the rest of the
nation.

The USA PATRIOT Act originated in the
Bush administration's Justice Department, just as the Loyalty-Security programs
which were central to the Cold War red scare were first drawn up by J. Edgar
Hoover's FBI.

In fact, Hoover may well have provided today's Justice
Department and FBI with a model for how to use the tensions generated by a war
scare to implement a vast program of domestic spying.

As we explore the Cold War red scare
in more detail, we need to keep in mind that naming it McCarthyism after
Senator Joseph McCarthy was a mistake. The anticommunist furor was well under
way by the time McCarthy entered the scene early in 1950 waving his
ever-changing lists of Communists and their allies in the State Department had
somehow given China
to the Communists.

McCarthy's charges were actually
part of a Republican party campaign against the Truman administration. They
were also untrue. There were no Communists in the State Department and China was not the United States's to give.

Unfortunately, McCarthy's wild
allegations and bizarre behavior confused contemporary observers-- and later historians, leading them to
treat the phenomenon to which he gave his name as a trivial aberration and
concealing the much more important role of J. Edgar Hoover. In fact, if we had
known then what we know now McCarthyism would have been called Hooverism.

Accordingly, we need to take a more
detailed look at how Hoover
built his agency's internal security empire during the early years of the Cold
War.

The centerpiece ofthat venture was the "Security Index"
-- a list of the most dangerous potential subversives who had to be kept under
constant surveillance to make sure they could be picked up within a few hours
in the event of war or a similar crisis.

By 1954, there were 26,174 people on
that list -- most of them union leaders and left-wing activists of one kind or
another, but hardly threats to the nation's security. Other lists, like the
so-called Communist Index contained the names of less dangerous individuals --
college professors, writers, lawyers, and others "who, in a time of
national emergency, are in a position to influence others against the national
interests." By the early 60s, the FBI had 400,000 people on their lists,
including Martin Luther King, Jr.

Not all of this was legal, for no law
or judicial ruling gave the Bureau authority for many of its activities. Nor
did Hoover
always tell his superiors what his men were doing. And, in fact, one of his
main objectives during the McCarthy era was to obtain legal cover for his
agency's activities.

He got that cover when North Korea invaded South Korea in the summer of 1950.
All of a sudden the Cold War turned hot and a panicky Congress pushed through a
bundle of countersubversive measures that had been languishing in committee for
years.

President Harry Truman, to his
credit, opposed the Internal Security Act or McCarran Act as this legislation
came to be called.

He argued that its provisions for
registering Communists, creating detention camps, and holding aliens without
bail were both unconstitutional and ineffective. But his opposition had little
impact.

So terrified of appearing
unpatriotic and soft on communism were the nation's lawmakers, that a group of
liberal senators attacked the proposed measure as, in the future Vice President
Hubert Humphrey's words, "a cream puff special" and urged the
adoption of a tougher piece of legislation. Their contribution, providing for
the rounding up and detention of potential subversives during a crisis, simply
got folded in to the McCarran Act which soon passed over the president's veto.

In other words, the invocation of an
emergency convinced a timid Congress to give Hoover a green light for his unwarranted
surveillance of thousands of law-abiding citizens.

The same thing is taking place today.
As happened in 1950 -- and, I should note, during most other crises in American
history -- the legislative branch has sacrificed individual rights on the altar
of national security.

A few days after the attack on the
Pentagon and WorldTradeCenter,
the Justice Department showed up on Capitol Hill with a 342-page piece of
legislation that was so complicated that it took the ACLU's attorneys nearly a
month to decipher it.

Nonetheless, so terrified and
disoriented were the nation's lawmakers that within six weeks, in the midst of
the anthrax scare, both houses of Congress, most of whose members hadn't even
looked at the measure, passed the USA PATRIOT Act by an overwhelming
margin.

That measure-- which, by the way, is
an acronym for "Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism" --along with a number of executive orders,
expands the executive's power by eliminating many of the checks and balances
the Founders built into the Constitution and allows the government to spy on
citizens and noncitizens alike.

Though there have been protests from
all points on the political spectrum and attempts to reform the most egregious
aspects of the law, the Bush administration has so far managed to keep Congress
from making any serious changes.

In fact, even as we are sitting here
today, a House and Senate Conference committee is working behind closed doors
to hammer out the wording for the revised version of the PATRIOT Act. Though
the Senate version makes a few improvements on the original statute, the House
one actually worsens it, freeing the FBI from any obligation to obtain search
warrants in matters of national security. There was, it is true, more
opposition to the measure this time around, but partisan arm-twisting
ultimately led to a 257-171 House vote for renewal. And it is unclear what kind
of monster will finally emerge from the conference committee's deliberations.

Like Congress, the federal judiciary
has often abandoned the Bill of Rights during wars and other crisis situations.

At the moment, its record is mixed.
Some courts have proved exceedingly deferential to executive authority and
allowed the Immigration and Naturalization Service, for example, to lock up
thousands of people without releasing their names.

At the same time, the Supreme Court
has tried to stop the administration from depriving its prisoners at Guantanamo and elsewhere
of the right to a judicial hearing. The administration is stalling, however,
and whatever the final outcome of these cases will be, as MLK once pointed out,
"Justice delayed is justice denied." Moreover, we simply don't know
how much the Court's willingness to challenge the administration was the
product of its desire to preserve its jurisdiction in the face of the executive
branch's encroachment rather than a commitment to insuring the rights of
unpopular individuals.

Such a commitment was seriously
lacking during this country's earlier moments of political repression. At the
end of the eighteenth century, judges and juries went along with the clearly
partisan Sedition Act and threw opposition journalists into prison for
criticizing the then president John Adams.

They did the same during and after
World War I when they refused to interfere with the Wilson administration's prosecution of
anti-war activists. Nor did the federal judiciary stand in the way of the
Roosevelt administration after Pearl Harbor
when it decided to expel Japanese-Americans from the West Coast and send them
to camps in the interior.

By the time the Supreme Court
finally did rule against the internment program, World War II was almost over.

There was a similar failure to
confront injustice during the McCarthy Era as well.

Though the Supreme Court later tried
to repair some of the damage, until the mid-1950s it countenanced just about
every aspect of the anticommunist purges. Its decisions and those of the lower
federal courts were crucial to enabling the Cold War Red Scare to operate.

These decisions gave congressional committees
like the House Un-American Activities Committee or HUAC free rein to question
witnesses about their political activities.

They allowed the dismissal of
federal employees on the basis of unsubstantiated charges by secret informers.

They let the Immigration authorities
hold aliens indefinitely without bail.

And they actually sent people to
prison simply for belonging to the completely legal Communist party.

As is the case today, national security justified it all.

Ultimately the Court began to
backtrack. Not only was it clear that the justices had overreacted to the
supposed threat of communism, but, more importantly, their rulings were
encouraging assaults on individual rights that went far beyond the limited
measures the court's majority had originally endorsed.

The Justices should not have been
surprised. As if obeying a law of nature, political repression invariably
expands until it affects individuals whose connection to the original threat is
far from clear. It is a slippery slope -- but one down which the nation
repeatedly slides.

Certainly, this was the case during
the McCarthy era.

Yes, there was espionage by American
Communists during World War II when the United
States and the Soviet Union
were allies against Hitler's Third Reich. At least a hundred people sent
unauthorized information to Russia,
including important details about the atomic bomb. But most of that spying came
to an end even before the Cold War began in the late 1940s. And, in any event,
the prevention of Soviet espionage was no justification for the widespread
purges that reached all the way from Hollywood
to Harvard and beyond.

In part because the anticommunist
crusade had other agendas -- like bolstering people's political careers or
destroying left-wing labor unions -- public and private investigators expanded
their inquisition from individuals with access to sensitive political or
military secrets to ordinary men and women with unpopular political ideas and
affiliations.

Most of these people, it is true, were
or had been connected in some way to American communism, but they had not been
involved in any illegal activities and posed no threat to the nation's
security.

When they came under attack, the
most far-fetched scenarios came into play, primarily to give a security-related
gloss to what was usually an employer's desire to eliminate a squeaky wheel or
avoid unfavorable publicity.

Thus, for example, it was claimed
that a meat inspector could poison the nation's food supply. A radio announcer
could promote Communist propaganda over the airwaves or broadcast instructions
in a secret code. A teacher could undermine the national defense by giving poor
instruction in math.

When the New York Times fired a copy editor who had
refused to name names before a congressional committee, it insisted that his
position on the paper's foreign desk involved national security. Had he been
assigned to the sports pages, he could have kept his job

Significantly, for all the commotion
about the need for vigilance against the threat of communism, the loyalty
programs and congressional investigations of the McCarthy era did little to
protect the nation's security.

Just as the contemporary
intelligence community was unable to prevent 9/11, so too, the FBI and military
intelligence agencies had not prevented the filching of official secrets by
Soviet agents during World War II. Nor did the witch hunt that followed turn up
any practicing spies or saboteurs.

Today's repression may be similarly ineffective.

Overloading the nation's internal
security apparatus does not necessarily make anyone safer.[1] As
an eminent physicist noted at the height of the McCarthy era, "The moment
we start guarding our toothbrushes and our diamond rings with equal zeal, we
usually lose fewer toothbrushes but more diamond rings."[2]
Today, as well, the Bush administration's increased surveillance of private
individuals may bury the diamond rings under an even higher pile of toothbrushes.

Moreover, just as Joseph McCarthy's
investigations and the federal government's loyalty-security procedures damaged
the nation's security by discouraging scientists from seeking jobs within the
defense department's facilities, so, too, the current regime's heavy-handed
treatment of the nation's Muslim communities will hinder its recruitment of the
native Arab speakers needed to interpret the mountains of material the security
apparatus is collecting.

In other words, repression within a
democratic society does not foster security; it creates injustice.

History, however, never repeats itself exactly. Despite
the parallels that exist between the political repression of the McCarthy era
and that of today, there are differences
as well. The most important have to do with the methods through which that repression is administered.

McCarthyism's main weapons were economic. The
McCarthy era did have its physical martyrs -- Julius and Ethel Rosenberg were
executed and dozens of Communist party leaders, union officials, screenwriters,
and other people went to prison. There were even some deportations.

But most of the sanctions were
imposed, not by the federal government, but by the film studios, universities,
local school boards, and other employers who fired and then blacklisted the men
and women who were targeted as politically undesirable.

Those purges operated in accordance
with a two-stage procedure.

First the supposed communists were
identified -- often by an official body like a congressional committee or the
FBI -- and then they were punished -- usually by their employers.

Here in California, a 1949 loyalty
oath designed to eliminate Communists from Berkeley and UCLA created a national
furor and cost about two dozen faculty members their jobs. A similar oath
imposed the following year on all state employees took an even higher toll.
Meanwhile, of course, the Hollywood studios were firing and then blacklisting
all their employees who refused to name names before anticommunist
investigating committees.

Similar purges occurred elsewhere.
Steelworkers in Baltimore, high school teachers in New York City, Foreign
Service Officers in Washington DC, longshoremen in San Francisco, college
professors in Michigan -- the list is long and varied.

Altogether, according to the most
reliable estimate we have, some 12-15,000 people lost their jobs during the
1940s and 1950s.

Certainly compared to the numbers of
people victimized by the likes of Hitler and Stalin, McCarthyism's body count
was minimal, but its political impact was considerable. The 1950s red scare
essentially eliminated criticism of America's Cold War policies and silenced
effective dissent for more than a decade.

Today, economic sanctions, though
they do exist, do not seem to be as central to the action. Instead, the federal
government is using criminal and, especially, administrative procedures to
conduct its domestic war on terror, targeting members of ethnic and religious
minorities rather than political dissidents.

Since most of the supposed, not to
mention the real, terrorists are foreign born, the INS has been the primary
offender. In the immediate aftermath of 9/11, over a thousand non-citizens were
rounded up and detained sometimes in solitary confinement for weeks and months
at a time --without bail, without
access to lawyers, and without any formal charges.

The INS's use of minor immigration
violations against these people, almost all of whom were law-abiding Muslims
from the Middle East and South Asia, bears a striking resemblance to the
selective prosecutions of the early Cold War when federal attorneys and the FBI
scrambled to manufacture offenses -- like perjury or contempt of Congress --
that they could charge suspected Communists with.

And, in fact, throughout our
nation's history, whenever the government is looking for scapegoats, it often
resorts to these kinds of trumped up charges for the simple reason that the
people it is prosecuting have not committed any kind of a crime.

Immigration proceedings have long been
central to American political repression -- and not just because foreigners are
more radical or unpopular. They are also easier to repress for the simple
reason that they have fewer rights than citizens.

During the first Red Scare in 1919
and 1920, to take one important example that bears many parallels to the
current scene, the INS arrested over ten thousand allegedly dangerous
foreigners in the space of a few weeks. Because the authorities had little
evidence for these people's wrong-doing, the Palmer raids, as these round-ups
came to be called, were designed to coerce quick confessions by denying bail to
the detainees and keeping their lawyers away. The abuses that occurred were so
egregious that public opinion soon forced an end to them -- and to the
political career of the ambitious Attorney General Mitchell Palmer who had
hoped that these mass deportations would send him to the White House.

There were fewer non-citizens in the
American population during the McCarthy era, thanks to the immigration
restrictions enacted after World War I. Even so, the INS still tried to force
hundreds of foreign born radicals out of the country.

The peculiar vulnerability of immigrants stems from a still-extant 1893
Supreme Court ruling that deportation is not a criminal punishment. What this
means is that non-citizens facing deportation are not covered by those sections
of the Bill of Rights that protect criminal defendants. They have no right to a
fair trial or to reasonable bail or access to an attorney, or to any of the
other protections associated with the constitution's guarantee of due process
of law.

During the McCarthy era, the
immigration authorities took advantage of this situation to hold foreign-born
radicals for months at a time, often without granting them bail or informing
them of the charges against them. The federal courts offered no relief and it
was only when the Eisenhower administration decided to save money by shutting
down the INS's detention centers that these practices began to ease up.

Today, those centers are in business again.
The Bush administration has taken advantage of the immigration authorities'
ability to bypass legal procedures and has detained hundreds, perhaps
thousands, of foreigners without launching charges against them or even giving
out their names.

National
security was, as usual, the justification for these operations -- even though
none of the detainees were charged with anything relating to terrorism. Many
were simply victims of mistaken identity, unfortunate timing, or the apparent
eagerness of federal officials to show results.

Rounded up at gunpoint by FBI agents in the
middle of the night, shackled, mistreated and sometimes physically beaten by
their guards, these people, whose most common crime seems to have been
overstaying their visas, were held often incommunicado until they were cleared
by the FBI and then whisked on a plane and shipped back to their countries of
origin.

So far, only a few American citizens
have received that kind of treatment. But since terrorism is as flexible a
notion as communism, it is easy to imagine the government using it as a pretext
for quashing people with unpopular views. Already the administration has taken
some measures that have ominous implications.

There is, for example the "no
fly" list, produced by the federal government and implemented by the
airlines (Note the public/private collaboration here.) While clothed in secrecy
and ostensibly directed against terrorists, this operation has created problems
for a lot of ordinary individuals, as well as some Green Party activists, a
civil liberties lawyer, and a whole bunch of people all of whom were named
David Nelson.

Equally distressing is the
crack-down on "material support" for terrorism which, as administered
by the Treasury Department, is forcing charitable organizations to screen all
their recipients in accordance with such a vague definition of
"terrorism" that supporters of Nelson Mandela's African National Congress
during the 1980s might well have come under suspicion.

In addition, the mission creep down the
slippery slope that so many of us fear is, in fact, already occurring as the
government deploys its new Patriot Act powers in non-terrorist-related cases.

Perhaps because of the violence perpetrated
by Al Qaeda, today's crackdown seems
more extreme than those of the past. There is a blatantly brutal quality to
the current antiterrorist campaign that makes the McCarthy era seem positively
genteel.

When an INS official urged one of
his colleagues not to "abandon the Constitution in this crisis," the
colleague replied, “Fuck the Constitution!”

Or as another official explained, "If
you don't violate someone's human rights some of the time, you probably aren't
doing your job." And these abuses are far from theoretical, as the
Department of Justice's own inspector general admitted in describing the mental
and physical mistreatment of the INS's prisoners, while the detention of the
Guantanamo captives defies international law as well as the Constitution.

And then there is the torture and
mistreatment of captives in Afghanistan and Iraq as well as the practice of
"rendition," the transferring of prisoners to third countries that
are less squeamish about using torture to extract information.

There is a similarly in-your-face
quality to the official secrecy that
surrounds these and other operations -- as if the Bush administration is
flaunting its power to conceal its activities from the public. It is, by far, the
most uncommunicative government in recent American history.

Many of its projects -- from
establishing secret military tribunals to eviscerating the Freedom of
Information Act to the Patriot Act's gag order that prevents librarians from
telling anyone else that the FBI has been asking questions about their patrons
-- further increase its lack of accountability.

Secrecy is, of course, a key
component of political repression.

But during the McCarthy era, the secrecy was more discreet, used
primarily to conceal illegal FBI break-ins and wiretaps or to protect the
anonymity of the Bureau's undercover informants. Thus, for example, Hoover's
men tapped the phones of political defendants and listened in to conversations
with their lawyers, but they would never have risked the Bureau's reputation by
revealing that they had done so. Today, the FBI, under an October 2001
executive order, listens openly.

Though the current War on Terror
makes the 1950s Red Scare look like a Sunday School picnic, the factors that
facilitate political repression in a modern, more-or-less democratic society
have not changed all that much.

Most important is the collaborative nature of that
repression. McCarthyism succeeded in crippling the First Amendment because so
many mainstream institutions went along with it. HUAC and Joe McCarthy grabbed
the headlines, but the less flamboyant contributions of the federal judiciary
and private employers in administering and legitimizing it were just as
effective.

Today, as well, a similar synergy may be in place. Some
judges have, it is true, resisted the pressure. But it is hard to imagine that
a federal judiciary packed with
Reagan-Bush appointees and a Supreme Court whose newest member may well be
Bush's own private lawyer will pose much of an obstacle to the administration's
repressive practices.

We may get more resistance from Congress. Many of
its members are uncomfortable with the executive's strong arm tactics, but whether
they will develop the collective backbone necessary to put an end to them is
another matter altogether.

The media
has not been helpful here. Not only has conglomeration reduced the range of
outlets available to the public, but the tendency of the mainstream media to
defer to the powers that be amplifies the administration's message and ensures
that most critics get ignored or, if they eventually reach the public, they do
so long after the damage has been done.

This happened during the McCarthy era as
well. Not only were dissenting voices overtly silenced, but they often silenced themselves.

Such self-censorship has reappeared today.
When CBS's former anchor Dan Rather admitted that he had not asked tough
questions because he feared seeming insufficiently patriotic and CNN's
Christiane Amanpour described her own network as "self-muzzled," we
may need no new McCarthy to chill the nation's political climate. Simply
criticizing current policies, especially if that criticism includes controversial
positions on delicate Middle-Eastern issues, can lead to nasty emails and
worse.

Although McCarthyism remains a dirty
word, popular concern for civil liberties has always been superficial at best.

When an enterprising reporter stood
on a Wisconsin street corner with a copy of the Bill of Rights during the
height of the McCarthy era and asked passers by to sign it, no one did. Would
he have any more luck today?

Perhaps -- the slowly stiffening
congressional spine and the current revulsion against the administration's use
of torture -- do give grounds for hope.

Still, we cannot ignore the
prophetic words of Learned Hand. The history of McCarthyism and the nation's
other repressive movements has taught us clearly tha

t constitutions, laws, and courts will
not preserve American liberty. We must, somehow, ensure that it remains within
the hearts of men and women. To do that will require speaking out, teaching in,
and refusing to give up the struggle for freedom and human dignity for all.

[1] David Cole, Enemy
Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism
(New York: The New Press, 2003), 7, 9, 55, 183-200.

[2] Dean Van Vleck quoted in Report
of the Special Committee on The Federal Loyalty Security Program of the
Association of the Bar of the City of New York (New York: Dodd, Mead &
Company, 1956), 148.